Former Vermont detainee wins appeal in forced prison labor case

A Vermont man who says he was forced to work at a prison in Burlington has won an appeal based on the 13th Amendment, which prohibits slavery and involuntary servitude.

Finbar McGarry was a pre-trial detainee who was held on charges of aggravated domestic assault, assaulting a law enforcement officer and resisting arrest in December 2008. The charges were later dropped and he was released in June 2009.

While he was detained in the Chittenden Regional Correctional Facility, McGarry says he was forced to work in the prison laundry for up to 14 hours a day at a rate of 25 cents per hour. Prison guards threatened him with solitary confinement if he refused to work, according to the appellate court ruling.

McGarry claims he worked in the prison laundry for long periods of time without access to a bathroom. Because he was not able to wash his hands or wear gloves to protect himself from unsanitary clothing, he says he developed a staph infection known as MRSA. At one point, he says he had a lump the size of grapefruit on his neck.

McGarry sued Department of Corrections officials and employees of the state in June of 2009, claiming his right to be free from involuntary servitude under the 13th Amendment. He named Anthony Pallito, the commissioner of the Department of Corrections, and other prison officials in the pro se lawsuit. McGarry also says the department is liable for failing to pay minimum wage, under the Fair Labor Standards Act, among other claims, including abridging his First Amendment rights (he says guards confiscated reading materials).

He is seeking $11 million in damages.

In U.S. District Court, the Vermont Attorney General’s Office argued that the “housekeeping” work in question was not punitive. The state’s attorney said the former prisoner didn’t have evidence to prove that he was treated like an African slave.

The U.S. District Court Judge Garvan Murtha upheld the state of Vermont’s claim of immunity from McGarry’s allegations and dismissed his constitutional claims. Murtha said the 13th Amendment claim is “clearly without merit, as his work three days in the prison laundry was nothing like the slavery that gave rise to the enactment of that Amendment” and any other outcome of the case would “trivialize the pain and anguish that the Thirteenth Amendment sought to remedy.”

Three judges in the 2nd U.S.Circuit Court of Appeals reversed and remanded Murtha’s decision on Friday.

The appellate court ruled that state officials violated the 13th Amendment when they forced McGarry, who had not been convicted, to work in the laundry. It also ruled that the state cannot treat detainees the same way it does convicted prisoners.

“The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery,” the judges wrote. They cited the 1988 U.S. Supreme Court case, United States v. Kozminski, in which the court concluded that “work obtained or maintained by the use or threatened use of physical or legal coercion is ‘akin to African slavery.’” McGarry’s allegations that guards threatened to “put him in the hole” (solitary confinement) they ruled, were plausible.

As for the state’s immunity defense, the appellate judges ruled that the Supreme Court has “unambiguously and repeatedly held that a state’s authority over pretrial detainees is limited by the Constitution in ways that the treatment of convicted persons is not.”

The matter now goes back to the district court.

At the time he was arrested, McGarry was a chemistry Ph.D. student at the University of Vermont. He was denied bail. All of the charges were dropped after McGarry says he hired a private attorney who gave him “zealous representation.”

McGarry grew up in Burlington and graduated from UVM in 1990. For 18 years, he ran clinical tests for large pharmaceutical companies, including Pfizer and Wyeth. McGarry was laid off in 2008 and sought a master’s degree at UVM that year. He was hoping to go back into the industry or teach college level chemistry at the Community College of Vermont. McGarry, who lives in Colchester, was most recently employed at Lowe’s.

Thomson Reuters news service and Time magazine have both published stories about the case, McGarry v. Pallito, et al., 2nd U.S. Circuit Court of Appeals, No. 10-669.

McGarry was defended by court-appointed attorney Daniel McLaughlin, who represents financial institutions and specializes in Wall Street securities litigation for the international law firm Sibley Austin, based in Manhattan. The appellate court, McLaughlin said, receives hundreds of appeals. This particular case caught the interest of the judges. The pro se 13th Amendment claim was unusual, he said.

“Clearly there is case law in this area, but it’s not something you see every day,” McLaughlin said.

David McLean, assistant attorney general for the State of Vermont, could not be reached for comment by press time.

About Anne

Anne Galloway is the founder and editor of VTDigger.org and the executive director of the Vermont Journalism Trust. She has been a journalist for 20 years. Galloway was the editor of the Sunday Rutland Herald and Times Argus from 2006 through 2009. For many years, she was a contributing writer for Seven Days, and her reporting has appeared in The New York Times (Vows column), the New York Daily News, Vermont Life and City Pages (Minneapolis). In March 2017, she was a finalist for the Ancil Payne Award for Ethics in Journalism for her investigation into allegations of fraud at Jay Peak Resort. Galloway was also a finalist for the Investigative Reporters & Editors FOI Award in April 2017.

David McLean and Bill Sorrell should answer the question: What the hell were they doing, defending this outragious “state” action? | D. Morrisseau POB 177 West Pawlet, VT [email protected] 802 645 9727

Christian Noll

I couldn’t believe the state was allowed to treat not only pre trial detainees the way they did at CRCF, but the way they treated staff.

I witnessed things such as this all the time.

The place is corrupt, period. Its a black stain on our local community and must be brought to public light.

Shame on Vermont.

Jan Santor

It is about time that the state be taken to task for some of the unfettered actions of supervisors & staff off our correctional facilities. What happened to innocent until proven guilty (rhetorical). McGarry was wise to wait until exonerated to pursue this case, otherwise retribution would have been the buzz-word of all of his days in jail. Not keeping detainees apart from convicted persons is unconscionable, in the first place; but, to disallow bathroom privileges and lack of sanitary equipment; ie., rubber gloves while handling others dirty laundry is exactly how the slaves were treated. As for the $0.25 cents per hour; Indentured Servitude was also abolished. I hope some super-savvy attorney, snags this case, pro-bono or with minimal fee and a payment plan and runs with it.

The System has taken a very intelligent, viable scientist and reduced him to a job that most under-educated Vermonters would not take.

Shame on you. Bill Sorrel, Judge Murtha and all state officials involved, for letting this thing go so far!!! You have made a mockery of our Constitution and dehumanized an asset to the medical community.

Finbar McGarry

Jan-

Actually, I filed the lawsuit from prison while held without bail. I actually had other prisoners serve a summons and complaint on many of the defendants- prison guards.

And I do have a saavy Vermont lawyer on remand- David Sleigh of St. Johnsbury.

Wendy Raven

I am very glad these three judges ruled the way they did. We have heard all too many stories lately about the mistreatment of convicted criminals….but I for one had no idea this kind of sick treatment was also levied on the not yet convicted detainees….things in this country are moving into a dangerous place and I am relieved to know that at least three judges recognized that.